In Saltz v. M.W. Sewall & Co., Me. WCB App. Div. No. 14-34 (December 19, 2014), the Appellate Division held that a Hearing Officer has authority to adopt § 312 findings in part, and reject others in the face of clear and convincing evidence to the contrary. Under § 312 of the Workers' Compensation Act, the Board must adopt the medical findings of an appointed § 312 "Independent Medical Examiner" unless there exists clear and convincing evidence to the contrary. In Saltz, an employee appealed a Hearing Officer's decision awarding a closed-end period of incapacity benefits for a mental stress injury, but denying a claim to ongoing incapacity benefits. In doing so, the Hearing Officer adopted the § 312 findings in whole, except as to the duration of the stress injury.

The Appellate Division affirmed, finding it highly probable the § 312 examiner was incorrect in his assessment of how long the employee suffered earning incapacity due to her mental stress injury. It found significant the § 312 examiner’s “own concession that ‘[i]t is quite difficult to put a date on when the effects of the mental injury ended,’ and that, therefore, the date he picked was ‘arbitrary.’” The Hearing Officer also provided various other compelling reasons for rejecting the § 312 finding relative to duration, including the lifting of work restrictions in February 2010 and the cessation of treatment shortly thereafter.

The Appellate Division also emphasized that the mere persistence of symptoms from a work injury does not necessarily mean that the disability is affecting the employee’s ability to earn.

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